Supreme Court appointments: What does ‘functionally bilingual’ mean?

Is it possible that, 44 years after the Official Languages Act made Canada a country of two equal languages, we’re still defining what “functionally bilingual” means? It’s a classically Canadian question, and one that will impact how the next Supreme Court justice is chosen.

The immediate reaction was mixed — some applauded it and others worried it would limit the pool of qualified candidates. But what does being functionally bilingual even mean?

In Thursday’s justice committee meeting, NDP Leader Thomas Mulcair asked the justice minister precisely that: “I’d really like to be able to answer people when they ask me that question: what does it mean to be functionally bilingual?”

Former NDP MP Yvon Godin, Mulcair noted, had championed the issue of Supreme Court bilingualism for years.

His most recent effort was a private member’s bill that defined bilingualism as understanding “French and English without the assistance of an interpreter.”

As it turned out, that was how Justice Minister Jody Wilson-Raybould defined it too.

“When I say functionally bilingual, (it) means will have the ability to understand oral and written arguments,” she said.

Speaking the language fluently, however, wasn’t essential.

“That’s not to say that the candidate will have to be able to engage counsel in both languages. Although that’s a positive attribute that a candidate can bring forward,” she said, adding that there’s a distinction between bilingual and functionally bilingual.

For Mulcair, that was a bit difficult to grasp.

“It’s hard to understand how someone could be functionally bilingual if they can’t speak the language,” he said.

“Because I’ve worked in this area for decades now, I can tell you what the criteria are under the charter of the French language for members of professional orders. But I don’t know what that means? So maybe the minister can tell us what that means to be functionally bilingual — what is it that might be tested?”

The minister said the office of the commissioner for federal judicial affairs will develop an assessment.

“What does that mean — the assessment will be developed in the office of the federal judicial affairs? What does that mean?” Mulcair asked.

She didn’t offer any additional details.

Writing in Maclean’s immediately after the announcement last week, Graham Fraser — Canada’s Commissioner of Official Languages and a huge supporter of the functional bilingualism requirement, defined it as both what it is and what it isn’t.

“Being ‘functionally bilingual’ does not mean being able to write decisions in both languages or carry on dinner conversation in both languages. It means being able to go through the documents in a case, understanding the facts and grasping the nuances of the arguments being made before the court,” he said.

“Anyone who is not able to do that and has to rely on interpretation is simply not as competent as someone who can.”

In 2009, Fraser pointed out, 22 of the 62 cases heard by the Supreme Court were argued partly or entirely in French.

“A judge who does not read French has to depend on a memo — known as a ‘bench memo’ — written by one of his or her clerks, presuming that the judge has hired a bilingual clerk,” Fraser explained.

The argument is often made that it’s unfair to expect lawyers and judges to be functionally bilingual, but Fraser wondered how it wasn’t unfair, then, to force those arguing before the court to be bilingual.

“The court system needs to be fair to someone who has argued a case in French at every level in Quebec and now has to decide whether to plead part of the case in French and part in English, or to trust that the interpreter will grasp the nuances of the argument,” he wrote.

On Thursday, Mulcair also raised the issue of fairness, particularly as it regards time limitations in the Supreme Court.

“I remember madame Chief Justice McLachlin looking down at a lawyer pleading in French and asking him to slow down, because one of the judges — and she named him — didn’t understand any French,” he said.

“But since we both know that everything is timed in the Supreme Court, what that means is that there’s an objective disadvantage to someone that’s being told to slow down so the translation can catch up.”

Be that as it may, on Thursday some members of the justice committee raised the possibility of candidates learning or brushing up on their English or French after being appointed.

Speaking to reporters Thursday, in French, Chief Justice McLachlin herself said she immediately tried to become “as bilingual as possible as quickly as possible” when she was appointed.

“After getting named from British Columbia, I took all the courses, etcetera. I could understand, I could read a bit, I could write — but I realized I needed to improve my French. So I set myself the task of really improving my French,” she said.

“The majority of judges, aside from those from Quebec and those, at a certain time, from New Brunswick, were in the same situation. For us, functioning in Canada’s two official languages is very, very important. But in the past, anyway, there were different ways to achieve that goal. Now it’s for the government of the day to decide on the qualifications for judges.”

For now, it’s unclear whether McLachlin’s French at the time of her appointment would have met the government’s yet-to-be-fleshed-out definition of functionally bilingual.

What is clear, though, is that she wouldn’t have been afforded the opportunity to improve her French after the fact.

“I know there has been discussions in the past, with respect to previous appointments, around learning French or English, as the case may be,” Wilson-Raybould told the committee Thursday.

“But in this case, our commitment is to ensure that there is a functionally bilingual justice that’s appointed to the Supreme Court.”